Sex discrimination and UK immigration law

Catherine Briddick10/07/2015

Direct discrimination on the grounds of sex has been a feature of immigration law in the past and remains a part of immigration processes as central to the enjoyment of fundamental rights as refugee status determination. See, for example, asylum appeal statistics which show that women are significantly more likely than men to have a Home Office decision to refuse them asylum overturned on appeal and Asylum Aid research which highlights the direct discrimination that women asylum-seekers encounter when having their claims for protection decided.

The focus of this blog, however, is on the indirect discrimination that migrant women are subject to by virtue of their position as subjects of UK immigration law. Of course, sex discrimination is not the only form of discrimination that can be identified in UK immigration law, its heteronormativity or the impact of particular rules or decisions on people of different nationalities might also be of concern, as might be discrimination that occurs for more than one reason, such as in relation to sex and nationality. Why is it, for example, that if you are Somali are you only half as likely to receive settlement (the right to live permanently in the UK) as a spouse than if you are Pakistani?

What’s interesting about immigration law’s sex discrimination is the extent to which it’s under researched and theorised, despite the fact discriminatory stereotypes based on gender (and indeed sexual orientation) are ‘written into’ UK immigration law and practice in a way that would be considered unacceptable in any other legal domain, including those, such as family law, that make such identities and relationships the object of its concern. Take for instance, the requirement that a wife obtains her husband’s signature on her application for leave to remain as a spouse. Alternatively, we might want to consider the privileging of marriage and heteronormativity that results in the Home Office reporting on the number of common-law spouses or same-sex and civil partner ‘wives’ or ‘husbands’ settling in the UK, when there is no such thing as ‘common law marriage’ and the attribution of gendered roles such as those of ‘wife’ or ‘husband’ might be problematic in any sphere, never mind when used to describe roles or positions in same-sex relationships. The discriminatory nature of practices like those described here are ‘hidden in plain sight’, masked by immigration law’s greater discrimination as between nationals and non-nationals.

Indirect discrimination against women in immigration law can be shown through a brief consideration of labour migration to the UK. It is not just that the majority of labour migrants are men, whilst the majority of family migrants are women, but that within the highly stratified labour migration system, statistical information obtained from the Home Office via freedom of information legislation shows that men are are significantly more likely than women to benefit from the rights that accrue to skilled or highly skilled migrants (those on Tiers 1 and 2 of the Points-Based system). In comparison, women disproportionately receive the most disadvantageous labour migration status that exists, that of a domestic worker. Significant disparities in the proportions of men and women in different migration categories might be unproblematic if those categories bestowed ‘equal’ rights. But women are disproportionately present precisely in those immigration categories that lead to material disadvantage.

Drawing on Bridget Anderson’s analysis of how migration law ‘fashions’ precarious workers, the material disadvantage that migration law’s indirect discrimination against women produces can be understood by reference to the reduction of women’s rights, forced dependency and precarity.

Those labour migrants who are considered skilled or highly-skilled are able to benefit from the ability to bring family members with them to the UK, can change employers and may be eligible for the right to settlement within a comparatively short period of time. Their positions of dependency on their employer or sponsoring body might well be problematic, but the disadvantage that results from this is of a different order to that experienced by domestic workers.

Domestic workers, in comparison, are entirely dependent on their employer for their migration status, and their position in the UK is precarious because they are granted leave for one unrenewable period of 6 months. Domestic workers are unable to bring family members with them, cannot change employers, cannot ‘switch’ to remain in the UK on a different basis and are not eligible to settle in the UK. KALAYAAN research has shown that, unsurprisingly, domestic workers have reported increased levels of exploitation, physical and sexual violence under this regime (known as the ‘Tied ODW visa’) since its introduction in 2012.

The Home Office’s justifications for the facets of the Tied ODW regime identified here as producing disadvantage are of particular concern. By stating that restrictions to the route are warranted because ‘those who enter in this capacity are not assessed against the economic needs of the country’ the Home Office is implying that the changes to the route that make it so disadvantageous can be justified as legitimate means of deterring people (women) from using it. The removal of the right to change employer is justified by reference to the existence of the National Referral Mechanism (NRM) for victims of trafficking whilst the limitation of leave is justified by reference to the ability of the employer (not the employee) to ‘transition’ to life in the UK and recruit workers from the UK ‘labour pool’.

Whilst the NRM may identify and protect (some) victims of trafficking (a proposition that may also be doubted), it cannot assist those who are exploited in other ways by their employer (for example by having their wages paid late or being otherwise ill-treated). That the limitation on leave is justified by reference to the needs of the employer rather than the employee is striking, as it positions migrant domestic workers as a ‘benefit’ that might be given to (or taken away from) those that the Home Office wants to attract to the UK. When one approaches the ODW regime from this perspective, i.e. as a benefit that accrues to someone other than the person whose rights in the UK are determined by it, its considerable disadvantages suddenly make ‘sense’ as the route changes demand structures in this part of the economy, depressing wages and preventing domestic workers from securing better employment elsewhere. Justifications for disadvantage that are premised on that disadvantage being beneficial to others (such as an employer or the UK economy) cannot be accepted as legitimate justifications for discriminatory treatment.

It is thus clear that men are more likely than women to benefit from the comparatively generous rules that apply to migrants at the ‘top’ of the labour migration hierarchy. In contrast, women’s migratory routes, such as the Tied ODW Visa, produce material disadvantage, restricting rights and producing and reinforcing women’s dependency and precarity in unjustifiable ways. Sex discrimination continues, therefore, to play a central part in UK immigration law.

Catherine’s research examines European responses to violence against women that have developed in migration law. Catherine is a barrister (now non-practicing) who has worked on violence against women issues in the not-for-profit sector. Catherine is Chair of Asylum Aid. You can follow her on Twitter @CateBriddick.

This post is part of the joint blog series on ‘Gender and Migration’ co-hosted by Border Criminologies and COMPAS. Posts in this series will be published on both blogs every Friday until mid-July.